Judges are unlikely heroes for simply upholding rule of law

PREMIUM

And thanks to Joanna Cherry, representing 75 MPs in the Court of Session yesterday, Boris Johnson’s shabby attempt to shut down Parliament and sneak a hard Brexit won’t be over any time soon.

How good was it to see a Scottish court declare Johnson’s suspension of Parliament unlawful – tripping up the scarpering Tory leader, who thought he’d outflanked the “checks and balances” of Britain’s chocolate fireguard unwritten constitution?

How ironic to discover that “misleading the Queen” could turn out to be so serious an offence, that Boris might yet feel compelled to walk the plank.

How distressing for the cynics to discover that, in Scotland at least, the folk with the wigs came to the rescue of democracy, instead of proclaiming wrong legal leaves on the line, like their fellow judges in a lower English court.

How grand to see a Scottish politician succeed with bold, confident, defiant legal action, and how satisfying to see Scotland’s distinctive social and democratic values showcased by a single judgment from our independent judiciary, not from the “usual suspects” of party politics.

How amusing to find UK Government lawyers caught on the hop – forgetting to ask the judges to suspend the effect of their judgment and stop MPs from sitting again when they feel like it. Perhaps they just didn’t rate Scotland – again.

And how very unusual, and perhaps uncomfortable, for these three Scots judges to realise that, north of the Border at least, they are heroes. Not for toeing a party line or for taking one side or another over Brexit. But for stating, baldly, that Emperor Boris Johnson is wearing no constitutional clothes, no matter how many fawning courtiers and commentators claim the contrary.

They are heroes for demonstrating that democracy is not a set of conventions to be gamed and the rule of law not some inconvenient bundle of red tape to be o’er-leaped by a shameless but powerful man telling bare-faced lies. They are heroes for proving conclusively that the law is not an ass, and that top Scottish lawyers will not stand by while convention is torn apart. They are heroes for doing their jobs – uncowed by all the pressure.

Three judges sought and weighed up all the evidence of bad faith by Boris Johnson, upheld Scots law, remained true to their own traditions and, as an outcome, have rebalanced the unequal power struggle between the British Parliament and Boris Johnson’s Government.

Result.

And it is a result – whatever happens at the Supreme Court next week.

As Joanna Cherry observed on Radio Scotland yesterday, Britain’s top court will start hearing the Government’s appeal on Tuesday but probably won’t rule on it till the following week.

So, opposition parties are talking about what to do next. The problem with going back to sit in the Commons is that without the Speaker, an order paper or MPs on Government benches, there’s not a lot they can do.

Far more effective is to plan for the moment Boris is forced to come crawling back with his tail between his legs to reconvene Parliament and then suspend the recess, cancel party conferences altogether and hammer out a Brexit resolution inching Britain back from the Boris cliff face.

Cherry and other legal experts are cautiously confident the majority of Supreme Court judges will be swayed by the same evidence of bad faith, which helped swing yesterday’s landmark ruling against the UK Government.

But if the Supreme Court lets Boris off the hook, deciding the suspension of Parliament is not a legal matter, Scottish politics still wins.

Any disagreement will clearly expose the fact that Scots professionals think and act differently to their English counterparts – even sober, be-wigged, and perhaps indy-averse ones. Basically, Scottish judges care about the rule of law and will exert themselves to protect it – if the Supreme Court disagrees, they simply prove that English judges dinnae.

There’s more. The British Government tried to disown early comments alleging political bias by the Court of Session judges – too late. If the Supreme Court now overrules the Court of Session, which set of judges will Scots intuitively side with – especially when the vast majority of us voted Remain?

Interestingly, Adam Tomkins MSP (a lawyer and likely Scottish Tory leadership contender) seems to agree. Yesterday he appeared to scold some of his own side by tweeting: “To politicians who don’t like court judgments: don’t attack the judges or the independence of the legal system. Don’t ever do that. Appeal, test your legal arguments in a superior court. Why does this even need saying?”

Quite. Boris Johnson is the first Prime Minister to have been found by a court to have misled a king or queen. And it’s ironic that a jurisdiction in the most republican bit of the UK should have decided such a constitutional snub potentially threatens Boris Johnson’s continued tenure as PM.

So, yesterday’s judgment was massively significant and will reverberate for a very long time. According to the Financial Times, the Scottish ruling “sent shockwaves through political and legal circles”.

But not through Radio Scotland. Its lunchtime programme started with a very pedestrian summary by a political correspondent before going on to a piece about bees. The presenter’s defence on Twitter was that Cherry was unavailable until 12.40. But rival broadcaster London-based LBC had cleared the slates, ditched the running order and got every available commentator to explore every aspect of the decision, minutes after the Court of Session’s finding was announced.

Later, Scottish Tory MP Andrew Bowie was allowed to get away with piously “regretting” the court’s decision, when he should have been pushed to explain why Boris should even remain in post given that he lied to the Queen.

Wakey, wakey. To be clear I’m a huge admirer of many producers, presenters and Radio Scotland programmes. But the infinite weariness and workaday attitude demonstrated by the station’s weekday sequence programmes – even when a worldwide story breaks on their doorstep – is depressing in the extreme.

How ironic that supporters of Scottish independence are retuning en masse to London-based LBC (the new home for Eddie Mair) to hear the rigorous radio they expect, pay for through the licence fee, but so rarely hear on BBC Scotland.

The Edinburgh ruling also presents a challenge to the Lord Chancellor. Robert Buckland said, after Boris’s remarks about not being bound by new legislation earlier this week: “I fully support the Prime Minister and will continue to serve in his Cabinet. We have spoken over the past 24 hours regarding the importance of the rule of law, which I as Lord Chancellor have taken an oath to uphold.”

If the Supreme Court backs the Court of Session, will Buckland protect the rule of law and force Boris Johnson to reconvene Parliament? Will he back the Commons as it seeks to see all the texts, emails, memos and exchanges relating to this sordid attempt to “stymie” parliament? Will he ensure that the inflammatory documentation relating to Operation Yellowhammer also reaches the public domain?

Finally, Joanna Cherry’s stock has risen higher within the SNP and wider independence movement. She’s demonstrated vision, determination and know-how – like a heat-seeking missile confronting those who would shrink democracy. She’s also worked collegiately with legal activists like Joylon Maugham and politicians from every parliament and party – during this legal action and the last. This could be key for the next stage in Scotland’s story.

Cherry and other Scots parliamentarians gave British MPs the right to revoke Article 50. Now she and other UK MPs have given Nicola Sturgeon the cross-party connections to forge a deal with Corbyn in exchange for a Section 30 order, if the next General Election produces a minority Labour government.

Mark the calendar. Wednesday, September 11, might be the day Scotland’s fortunes changed.

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